Environmental Settlements: Force Majeure Claims Related to COVID-19

Sidley Austin LLP
Justin A. Savage, Timothy K. Webster and Samina M. Bharmal

March 13, 2020

This article was originally posted here

Environmental settlements — including everything from judicial consent decrees with the U.S. Environmental Protection Agency (EPA) to administrative consent orders with state environmental agencies — typically contain force majeure clauses, especially where the settlements require performance of work with timing requirements, not just payment of penalties or reimbursement of government costs. Thousands of such settlements are in effect around the United States in all areas and media — site remediation, air, water, waste and natural resources. Given the substantial business disruption being caused by COVID-19 worldwide, companies that are parties to environmental settlements should review those settlements now to understand the circumstances under which force majeure claims may be raised.

Force majeure in environmental settlements. Environmental force majeure provisions typically track commercial force majeure provisions, focusing on whether events beyond the control of a company may contribute or has contributed to a delay in performance. Environmental settlements can depart from the commercial world in that they often impose a litany of process hurdles for invoking force majeure.

Continue Reading

PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA

Greenberg Traurig LLP
Steven Barringer and Katie P. Reed

March 3, 2020

On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of promulgating a National Primary Drinking Water Regulation and imposing an enforceable “maximum contaminant level” (MCL) for the substances – just two of the more than 7,000 so-called “forever chemicals” that are under intense scrutiny from lawmakers and the public. EPA set nonbinding health advisories of 70 parts per trillion for the two chemicals in 2016, and issued interim recommendations for cleanup of ground water contaminated with PFOA and PFOS in December 2019, but Congress and states continue to pressure EPA to develop enforceable drinking water standards for PFOS and PFOA. Meanwhile, states with impacted drinking water supplies are not waiting for EPA; a number have promulgated their own standards, including Vermont and New Jersey, both of which adopted levels much lower than EPA’s recommendations.

Continue Reading

NYS Department of Environmental Conservation issues revised general permit for stormwater discharges from construction activity

Harris Beach, LLC
Gene Kelly

March 1, 2020

First Published on February 4, 2020

On January 29, 2020, the NYS Department of Environmental Conservation (“DEC”) issued a new and revised State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activity (GP-0-20-001), replacing the previous general permit (GP-0-15-002). The new permit, like its predecessor, governs discharges of stormwater to surface waters of the State from construction activities.  It may also authorize discharges of stormwater to groundwater in cases where DEC has determined that a permit is necessary.

Continue Reading

Soil And Fill Recyclable Materials Industry Scrambles To Comply With New Law Aimed To Crack Down On Illegal Dumping

Archer & Greiner, P.C.
Nicholas J. Lochetta II

March 11, 2020

How New Jersey’s soil and fill recycling businesses will be impacted.

New Jersey Governor Phil Murphy recently signed Senate bill S-1683 (A-4267) extending many compliance requirements for the solid waste industry. This effort to overhaul rules applicable to soil and fill recycling businesses comes after major cases of alleged illegal dumping made headlines in the past year, including a report about a seven-story pile of waste and debris that had been created on property in a residential section of Vernon Township. Soil tests found that the pile contained elevated levels of chemicals which are harmful to human health. This new law will prevent this, and similar situations, from happening again.

Continue Reading

Synergy Environmental – Coronavirus (COVID-19) Message

U.S. CDC Updates click here

To our Clients, Colleagues, Vendors and Families,

Synergy Environmental, Inc. is committed to working with Federal, State and local authorities to mitigate the spread of the Coronavirus (COVID-19). With this in mind, let us outline the measures we are taking to address the situation at our offices in Montgomery County, PA; Berks County, PA; Lehigh County, PA and Camden County, NJ.

Synergy Environmental, Inc. remains fully operational, with some of our staff in the office and others working remotely. We are asking our employees working in our offices to employ social distancing best practices as well as avoiding gatherings of 10 or more people. We are also utilizing technology, such as chat, text, e-mail and phone communication to lessen the impact of exposure.

Continue Reading

Epa Contractor

PFAS Is Officially Subject to The “Toxic Release Inventory” – and Affected Facilities Should Get Their Ducks in a Row

Crowell & Moring LLP
Peter Gray and Amy Symonds

February 13, 2020

The federal government is imposing one of the first environmental requirements for per- and polyfluoroalkyl substances (PFAS), and industry must plan accordingly.

Under an obscure provision of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), Congress directed the U.S. Environmental Protection Agency (EPA) to list certain PFAS under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). Specifically, Section 7321 of the NDAA mandated that 14 specific PFAS plus any additional PFAS that meet certain criteria be listed as “toxic chemicals” that are subject to the annual Section 313 reporting requirement. EPCRA Section 313 (also referred to as the Toxic Release Inventory or TRI) imposes reporting obligations on facilities involved in industries identified by certain SIC codes (largely covering facilities in the manufacturing, mining, and power sectors). Specifically, if a covered facility manufactures, processes or otherwise uses a listed toxic chemical above an applicable threshold quantity, the facility must annually report to EPA environmental releases of and other waste management activities relating to that toxic chemical.

Continue Reading

Looking For Limits: The Negotiation Of Environmental Indemnity Agreements

Cadwalader, Wickersham & Taft LLP
Steven M. Herman and Molly Lovedale

February 3, 2020

The original article can be accessed here

One of the key ancillary documents in commercial real estate loans is the environmental indemnity. Under federal and state environmental laws, an owner of real property is strictly liable for the remediation of contamination from hazardous substances on such real property.

Environmental indemnities are typically executed by the borrower and the guarantor collectively as the indemnitor and include representations and covenants relating to hazardous substances and, most importantly, from a lender’s perspective, an indemnification in favor of the lender for any claims or losses arising from hazardous substances on the mortgaged property. Unless otherwise negotiated by the indemnitor, the indemnity survives indefinitely. Consequently, much of the negotiation between the borrower and the lender centers around trying to limit when the lender can make a claim under the indemnity.

Continue Reading

New Reporting Rule for Accidental Releases

Troutman Sanders LLP
Randy E. Brogdon, Carroll “Mack” W. McGuffey III and Richard L. Pepper

February 12, 2020

The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

  • A fatality;
  • A serious injury resulting in death or inpatient hospitalization; or
  • Estimated property damage at or outside the stationary source equal to or greater than $1 million.

Continue Reading

US Supreme Court Grapples with Balancing Landowners’ Rights Against CERCLA Authority

Squire Patton Boggs
Brent Owen

February 10, 2020

Two months ago, the US Supreme Court heard oral arguments in Atlantic Richfield Co. v. Gregory Christian. The case is critically important to environmental lawyers in the United States because it may alter the operation of Congress’s Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) scheme for environmental remediation. CERCLA gives EPA broad power to command government agencies and private parties to clean up hazardous waste sites. In Christian, the Court will address whether and to what extent private landowners (and ultimately a jury of lay citizens) can, through state-law property-rights’ claims, contradict EPA’s plan for cleanup and remedial efforts.

Continue Reading